<<
>>

2.1. Materials legislative (pravotvorcheskogo) process

In the constitutional litigation materials legislative (pravotvorcheskogo) process play a double role as, on the one hand, they can contain data on the facts, formed the basis for acceptance of the concrete standard decision.

In this sense they allow to understand better logic of the legislator (other pravotvorcheskogo body) to understand its primary, instead of formulated and at times invented in reply to judicial razbi - ratelstvo [473] arguments and motives of election of a corresponding variant of legal regulation, that finally creates preconditions for more objective konstitutsionno-judicial estimation of the maintenance pravotvorcheskih decisions. On the other hand, materials legislative (pravotvorcheskogo) process can have evidentiary value when the judicial review is carried out by formal criteria of constitutionality. For example, the Constitutional Court, specifying conditions of a recognition of acts mismatching the Constitution of the Russian Federation under the method of adoption, has formulated a legal position according to which othozhdenie from the constitutional requirements can be established at presence not any procedural infringements [474], and only such infringements which do not allow to provide conformity between the maintenance pravotvorcheskogo the decision and real will of a representative body [475 [476] [477]. In particular, in one of the decisions the court as the additional argument confuting an argument about distortion of the valid will of the legislator, has referred to the shorthand report of session G osudarstvennoj the Dumas from which discussion of amendments in the bill, brought in the second reading followed, that, had substantial character.

However it is necessary to understand, that the mechanism of check of normative acts by formal criteria of constitutionality is provided not in all states. In particular, the analysis of konstitutsionno-judiciary practice of the USA shows, that the American courts try to avoid check of constitutionality of certificates of the Congress on the procedural bases, explaining it aspiration not to bring disbalans in system of controls and counterbalances and once again not to call into question a principle of separation of powers. The similar approach also is used at judicial review realisation behind constitutionality of laws of states. So, investigating possibility of konstitutsionno-judicial check, for example laws of the State of Wisconsin on the formal bases, M.Gallaher comes to conclusion, that check of observance of procedure of acceptance of certificates of Legislative assembly of Wisconsin is not included into powers of vessels [478].

If to speak about a substantial konstitutsionno-judicial estimation pravotvorcheskih decisions it is necessary to mention that legislative process materials can receive special evidentiary value if as a condition of constitutionality of restriction of fundamental laws and freedom the duty of the legislator is provided to give a substantiation to the standard decisions. In this case legislative process materials, as a matter of fact, will receive the status of the unique admissible proof of constitutionality, and the legislator will lose possibility to refer to other proofs as on the basis of the objections against arguments of the persons challenging constitutionality of the standard legal act.

However for today neither in Russia, nor in the USA on the legislator such duty is not assigned [479 [480].

At the same time is pleasant enough to notice, that one of judges of the Constitutional Court, beginning at least since 2013, consistently defends the point of view about necessity of a recognition for the legislator of such duty and urges the supreme body of the constitutional justice of Russia to formulate a corresponding legal position. So, leaning against judiciary practice of Federal Constitutional court G ermanii and the German legal doctrine, judge G.A.Gadzhiev repeatedly underlined, that «absence of a weighty konstitutsionno-legal substantiation of restriction entered by the legislator mismatches requirements of the general principle of equality» [481] and undermines «trust of citizens to the state». Estimating correctness of introduction of the differentiated order of the statement of rules of land tenure and building in cities of federal value, he has noticed, that the federal legislator has not explained, «why an order... [Statements of the specified rules] in Moscow, St.-Petersburg and

Sevastopol should differ from an order existing in Ekaterinburg or other large city ». In an another matter, using similar legal ar

gumentatsiju, judge G.A.Gadzhiev has doubted constitutionality of the law of the Chelyabinsk area by which for lack of any substantiation fiscal incentives to pensioners on payment of the transport tax have been cancelled that has led to one-stage strengthening of the tax burden assigned to the specified category of persons, in 75 times.

Accordingly, if in the constitutional litigation it will be established, that the standard positions limiting fundamental laws and freedom, have not received during legislative process due faktologicheskogo a substantiation theoretically konstitutsionno-proceeding can go under three scenarios: 1) the given circumstance becomes the independent basis for a recognition of standard positions mismatching the constitution; 2) the legislator will lose possibility to refer to other proofs as on the basis of constitutionality of the accepted certificates and, as consequence, destiny of konstitutsionno-judicial dispute - if, of course, justice goes in the conditions of competitiveness - will be put in dependence on evidentiary activity of the person challenging constitutionality of the normative act; 3) the given circumstance will not affect neither results konstitutsionnokontrolnoj activity, nor on possibility of the parties to make the legal proceedings connected with proving and proofs.

As it is easy to guess, the designated remedial variants are possible in situations when materials of legislative process do not represent any evidentiary value. However as the body of the constitutional judicial review if the specified materials all the same contain data on the facts and references to the concrete proofs proving a rationality of the made standard decision should react? Whether there should be [482 [483] limits (standards) of revision of the facts established by the legislator, or limit possibility of konstitutsionno-judicial bodies anew to establish the facts which characterise an essence disputable pravotvorcheskih decisions, and-or to investigate the new proofs confuting conclusions about the facts which have been made by the legislator, is inadmissible?

While in practice of the Constitutional Court the corresponding remedial legal position is not generated yet, the Supreme Court of the USA already made the observations in this occasion and noticed, that courts are obliged to show the valid relation to the facts established by the Congress as with institutsionalnoj the points of view the legislator «is is much better adapted for gathering and an estimation of great volumes of the fact sheet concerning legislative questions, rather than judicial authority bodies» [484 [485] [486]. Therefore if the legislator, making of the concrete standard decision, has resulted faktologicheskoe a substantiation it is enough to vessels to make sure only, that «the Congress has made ra -

489

zumnye conclusions, proceeding from proofs having essential value ».

As to the maintenance institutsionalnyh the advantages which are giving the chance pravotvorcheskim to bodies most adequately to reveal the actual bases pravotvorcheskih of decisions it is considered, that legislative process, resulting openly and allowing to consider opinions and expert estimations of a wide range of interested persons, it is capable to provide development of optimum variants of legal regulation. In turn, deputies, being selected and accountable to corresponding electorate, aspire to support a feedback with the population and to consider moods and inquiries of people. Besides, if judicial business is carried out, as a rule, in the conditions of deficiency of time caused by necessity operatively to resolve the arisen legal conflict legislative process is not limited by strict time frameworks, that rather favorably affects search and a finding of the most adequate and weighed standard decisions.

However the position that courts, estimating constitutionality of certificates of the Congress which has already received faktologicheskoe a substantiation during legislative process, should reduce evidentiary activity to a minimum and has not the right to suppose research of new proofs, is divided not by all. Some American researchers, not calling into question mentioned above advantage, urge courts to approach to legislative process materials critically. Their argument is based that decisions of the legislator are politically motivirovannymi while judicial authority bodies thanks to presence of corresponding guarantees and the strict remedial form are capable to make independent and impartial decisions. Unlike vessels, the Congress urged to react to subjective desires of voters, instead of on the objective facts of the validity »[487].

Really, in hands of the legislator the fact sheet frequently carries out function of the rhetorical tool for in the environment where lobbyism historically took far not last positions, it is usually accepted to appeal only to those facts which prove correctness corresponding interesantov. To it it is necessary to add, that refusal of vessels to investigate new proofs practically levels value of court as mechanism of protection of minority from «tyranny of the majority» [488].

Nevertheless the Supreme Court of the USA in boundary situations is inclined to confirm constitutionality of the standard decisions which have received faktologicheskoe a substantiation during legislative process. And such deliberately tactful relation to the facts established by the Congress, is shown by court even in the presence of the bases to believe, that conclusions of the legislator mismatch the validity. So, in the legal literature as an axiom when to legislative process materials has been given, despite presence of doubts in reliability of the facts stated in them, evidentiary weight, business about an interdiction of carrying out of abortions at late stages of pregnancy (partial-birth abortion) is often resulted. The Given case is remarkable that during the constitutional manufacture in the trial court the expert opinions confuting an argument of the legislator have been presented that similar abortions are never carried out in connection with medical indications [489 [490]. It is important to underline, that this question had enormous value as according to case practice of the Supreme Court of the USA the legislator has not the right to forbid carrying out of abortions and after the fruit became viable (that is after 23 weeks from the moment of conception of the child) if on a game there is a life and health of mother. Nevertheless the court recognised the specified legislative interdiction corresponding to the Constitution of the USA on the ground that in medicine position unequivocally recognised as scientific community concerning is not formulated yet, whether the medical requirement for abortion carrying out arise at late stages of pregnancy can, and that it it is traditional «gave to the federal legislator and legislators of states wide diskretsiju in acceptance of laws in those spheres where there is a medical and scientific uncertainty» [491].

However, under the certificate of the American jurists, the Supreme Court of the USA is not always inclined to adhere to the specified position and sometimes shows inconsistency in definition of the evidentiary status of materials of legislative process [492]. In some cases it specifies in necessity of an independent establishment of the legislative facts, especially when challenged standard positions mention fundamental laws and freedom, in other cases recognises inappropriate research of new proofs if conclusions about the legislative facts have already been made by the Congress, and in the extremely rare cases recognises absence faktologicheskogo substantiations in materials of legislative process by the basis for a law recognition to mismatching constitutional positions.

Other important methodological aspect connected with evidentiary value of materials of legislative process, consists that during the certain moment the circumstances which have formed the basis for acceptance of the concrete standard decision, can lose the urgency. In this case legislative process materials as written evidences, certainly, will lose property of the relevancy. It is necessary to notice, that in it the known difference between expected results of legal regulation which are sounded pravotvorcheskimi by bodies in a preliminary order (an armour is shown. - ex ante), and a konstitutsionno-judicial estimation which has already the subsequent character (an armour. - ex post) [493 [494]. By the way, it is rather remarkable, that in the modern literature observations according to which pravotvorcheskie bodies, taking into consideration inevitability of divergences between prospective (predicted) reguljativnym effect of the standard decision and its valid influence on public relations in the future, are obliged to carry out monitoring are made and in case of need to review the pravotvorcheskie decisions [495]. Certainly, it is possible to find rational grain in it, however it is represented, that in case of contest of constitutionality of standard positions on temporalnomu to the basis bodies of the constitutional judicial review should show a known share of restraint and to confirm their constitutionality if from the point of view of the constitutional requirements the found out deviations have insignificant character.

As to the changes, capable to influence constitutionality of normative acts interest is represented by the typology of the changed circumstances offered by M.Ponomarenko following the results of the analysis of the American konstitutsionno-judiciary practice. She suggests to include in it the technological development, allowing to provide achievement of the legitimate purposes by less burdensome means, occurrence of the new scientific proofs testifying to unreasonableness of operating legal regulation, transformation of structure of the market, evolution of morally-ethical standards of a society, change of a social context, including otpadenie threats on which elimination have been directed pravoogranichenija etc.

On this background in practice of the Russian constitutional justice the question on the evidentiary status of materials of legislative process has not received due attention. Nevertheless, giving substantial estimations pravotvorcheskim to decisions, the Constitutional Court addressed to explanatory notes to bills [496 [497] [498] and to their financial and economic substantiation [499], and judges in the separate opinions referred to data on the facts which have been stated in the conclusions of profile committees [500] and shorthand reports of sessions of the State Duma [501].

However, to find decisions of the Constitutional Court in which data on the facts, taken of legislative process materials, would play a main role on - the present, a problem not from the simple. Probably, it is necessary to search for the reason of it that the Russian legislator is inclined to approach to a substantiation of the standard decisions formally and to be limited to abstract judgements. For example, when constitutionality of toughening of an order of the organisation and carrying out of public actions was checked and responsibility for its infringement, the Constitutional Court from an explanatory note to corresponding bill has quoted only following passage: «[legislative changes] have been directed on achievement of necessary balance of the rights and interests of organizers and participants of public actions, on the one hand,

And citizens who in connection with carrying out of such actions test for - 506

trudnenija in realisation of the constitutional laws, - with another ».

About check of constitutionality of article 159.4 of the Criminal code of the Russian Federation (further - UK the Russian Federation) the Constitutional Court thanks to corresponding explanatory note has made sure of business, that the decision on differentiation of structures of swindle has been directed on maintenance of due level of protection «interests both separate citizens, and the big groups of the citizens who have suffered from roguish actions» [502 [503]. Nevertheless it did not explain, why for swindle fulfilment in especially large size (six millions roubles) subjects of enterprise activity should bear punishment in the form of imprisonment for the term up to 5 years (a crime of average weight) whereas the general structure of the swindle made in especially large size (one million roubles), provides punishment in the form of imprisonment for the term up to 10 years (grave crime). As a result the Constitutional Court disqualified the criminally-legal differentiation entered by the legislator, as assuming the punishment, disproportionate the crime social danger. However it is represented, that if the legislator has initially proved presence of the objective features demanding the differentiated approach to a criminally-legal estimation of swindle in sphere of enterprise activity, having specified, for example, that from the point of view of conditions the enterprise

508

Activity is led «openly and in legal conditions», assumes nesoiz

merimo bolshy a turn of money resources etc., probably, it would be more difficult to constitutional Court to recognise unconstitutional the challenged statute and, probably, konstitutsionno-proceeding could go under other scenario.

Certainly, from this tendency there are pleasant exceptions which, however, can be found, analyzing more likely separate opinions of judges, rather than decisions of the Constitutional Court. For example, judge V.G.Yaroslavtsev, having investigated not only an explanatory note to the bill, but also the conclusion of profile committee G osudarstvennoj the Dumas, has managed to establish the efficient cause on which the legislator has excluded from jurisdiction of court with participation of jurymen criminal cases about crimes of a terrorist orientation. It has come to conclusion, that «the basic impulsive cause... [Restrictions of a constitutional law on court with participation of jurymen have acted the become frequent cases] vyneseni [I] either verdicts of"not guilty", or an accuser -

509

nyh verdicts with instructions on indulgence concerning defendants », that from

It is covered it was declared by deputies referring to judiciary practice in southern regions of Russia. In the light of the specified circumstances it is impossible to disagree with opinion of judge V.G.Yaroslavtsev that the purpose which was pursued by the federal legislator, it is difficult to recognise konstitutsionno significant. [504 [505]

Besides, P.D.Blohin and O.N.Krjazhkova result an interesting example which shows, that results constitutional normokontrolja can depend even on intermediate legislative actions. Having analysed joint opinion of judges To. V.Aranovskogo and G.A.Gadzhiev to definition of the Constitutional Court from March, 5th, 2013 № 353 (about according a right on a delay from an appeal on military service to the citizens trained under programs of initial or average vocational training, before achievement by them only 20 years), they have found out, that among the arguments led by judges in favour of acceptance of the complaint to consideration, the reference on «some bills of change of conditions of giving time», which appeared, on

To opinion of judges, in addition specified in deficiency of operating legal regulation. Hence, even separate materials of legislative process (bills, responses to them [506] [507] etc.) can have evidentiary value and serve as independent konstitutsionno-legal arguments.

2.2.

<< | >>
A source: CHirninov Aldar Munkozhargalovich. PROVING And PROOFS In the CONSTITUTIONAL LITIGATION of the RUSSIAN FEDERATION And the UNITED STATES Americas: rather-LEGAL RESEARCH. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg - 2018. 2018

Download original source

More on topic 2.1. Materials legislative (pravotvorcheskogo) process:

  1. § 1. Perfection pravotvorcheskogo process as a condition of unity of the Russian legislative system
  2. §2. Principles municipal pravotvorcheskogo process and a guarantee of its realisation.
  3. §1. The population as the subject municipal pravotvorcheskogo process.
  4. §1. Features pravotvorcheskogo process in the European Union.
  5. §2. Criteria of efficiency municipal pravotvorcheskogo process.
  6. §1. Organization-legal measures on improvement municipal pravotvorcheskogo process.
  7. §1. Concept municipal pravotvorcheskogo process and its place in system pravotvorcheskoj activity in the Russian Federation.
  8. the Chapter II. Subjects municipal pravotvorcheskogo process and its stage.
  9. the Chapter I. A teoretiko-legal basis municipal pravotvorcheskogo process.
  10. the Chapter III. The basic directions of perfection municipal pravotvorcheskogo process
  11. 3.2. Legislative process in Republic Kazakhstan Parliament
  12. §3. The basic stages of legislative process in Parliament of the United Kingdom
  13. 4.2. Exploration of process of fusion of raw materials.
  14. 1.3 Identification of properties of raw materials and a process condition
  15. Use of process of a self-warming up for an estimate of a heat capacity of materials
  16. 3.4.3. Means and the materials necessary for realisation of technological process
  17. CHAPTER 2. THE THEORETICAL STUDY OF PROCESS OF MIXING OF LOOSE MATERIALS IN THE PLANETARY MIXER